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THE UBFTARY OF f/'K-wnt^ 



ONE COUNTRY, ONE CONSTITUTION, AND ONE PEOPLE. 



SPEECH 



HON. JOHN A. BINGHAM, OF OHIO, 

IN THE HOUSE OP REPRESENTATIVES, FEBRUARY 28, 1866, 

In support of the proposed amendmeiit to enforce the Bill of Rights. 



Mr. BINGHAM said: 

Mr. Speaker: I approach the discussion of 
this subject, aware that it will be utterly im- 
possible tor me, within the time allotted me by 
the rules of the House, to do justice to the pro- 
I^osition reported by the joint committee. 

I think, sir, that the honorable gentleman 
from Vermont [Mr. Woodbridge] has uttered 
words that ought to be considered and accepted 
by gentlemen of the House, when he says that 
the action of this Congress in its effect upon the 
future prosperity of the country will be felt by 
generations of men after we shall all have paid 
the debt of nature. I believe, Mr. Speaker, as 
I have had occasion to say more than once, that 
the peojile of the United States have intrusted 
to the present Congress in some sense the care 
of the Republic, not only for the present, but 
for all the hereafter. Your committee, sir, 
would not have sent to this House for its con- 
sideration this proposition but for the convic- 
tion that its adoption by Congress and its rati- 
fication by the people of the United States is 
essential to the safety of all the people of every 
State. I repel the suggestion made here in the 
heat of debate, that the committee or any of its 
members who favor this proposition seek in any 
^ form to mar the Constitution of the country, or 
teke away from any State any right that belongs 
to it, or from any citizen of any State any right 
that belongs to him under that Constitution. 
The proposition pending before the House is 
simply a proposition to arm the Congress of the 
United States, by the consent of the people of 
the United States, with the power to enforce the 
bill of rights as it stands in the Constitution to- 
day. It ''hath that extent — no more." 

Gentlemen who seem to be veiy desirous 
(although it has very recently come to them) 
to stand well with the President of the United 
States, if they will look narrowly into the mes- 
sage which ire addressed to this Congress at 
the opening of the session will find that the 
proposition pending is approved in that mes- 
sage. The President in the message tells this 
House and the country that "the American sys- 
tem rests on the assertion of the equal rigTit of 



every man to life, liberty, and the pursuit of 
happiness." 

But, sir, that statement rests upon higher 
authority than that of the President of the 
United States. It rests upon the authority of 
the whole people of the United States, speak- 
ing through their Constitution as it has come 
to us from the hands of the m»n ^^o fr«r vl 
it. The words of that grei.' ■ :).-,lrumeQi. are ; 

" The citizens of each State -hall be entitled to al] f 
privileges and immunil' ''s ol' oiliiens in the sever41 
States." 

"No person shall be deprived of life, liberty, or 
property, without due process of law." 

What do gentlemen say u> these provisior^' *' 
" Oh, we favor that ; we agree with the i resi- 
dent that the basis of the American system is 
the right of every man to life, liberty, and the 
pursuit of happiness ; we agree that the Con- 
stitution declares the right of every citizen of 
the United States to the enjoyment of all priv- 
ileges and immunities of citizens in the sev- 
eral States, and of all persons to be protected 
in life, liberty, and property." 

Gentlemen admit the force of the provisions 
in the bill of rights, that the citizens of the 
United States shall be entitled to all the priv- 
ileges and immunities of citizens of the United 
States in the several States, and that no i^erson 
shall be deprived of life, liberty, or property 
without due process of law ; but they say, '"We 
are opposed to its enforcement by act of Con- 
gress under an amended Constitution, as i>ro- 
posed." That is the sum and substance of all 
the argument that we have heard on this sub- 
ject. Why are gentlemen opposed to the en- 
forcement of the bill of rights, as proposed? 
Because they aver it would interfere with the 
reserved rights of the States ! Who ever before 
heard that any State had reserved to itself the 
right, under the Constitution of the United 
States, to withhold from any citizen of the Uni- 
ted States within its limits, under any pretext 
whatever, any of the privileges of a citizen of 
the United States, or to impose upon him, no 
matter from what State he may have come, any 
burden contrary to that provision of the Consti- 



.134 \ 



tution which declares that the citizen shall be 
entitled in the several States to all the immu- 
nities of a citizen of the United States? 

^Vhat does the word immunity in your Con- 
stitution mean ? Exemption from unequal bur- 
dens. Ah! say gentlemen who oppose this 
amendment, we are not opjiosedto equal rights ; 
we are not opposed to the bill of rights that all 
shall be j^rotected alike in life, liberty, and prop- 
erty ; we are only opposed to enforcing it by 
national authority, even by the consent of the 
loyal j^eople of all the States. 

Mr. Speaker, we have had some most extraor- 
dinary arguments against the adoption of the pro- 
posed amendment. Among others we have the 
argument of the gentleman from New Jersey, 
[Mr. Rogers.] that he is opposed to it because 
he says it comes from a joint committee more 
tyrannical than an}^ tyranny which disgraced 
the times of Louis XIV. I do not see, if the 
amendment be good, that that is any objection 
to its adoption. The gentleman seemed to think 
it was an objection. He must have spoken 
sportively ; he must have spoken ironically 
of the committee of which the gentleman him- 
self is a member. The gentleman unwittingly 
echoed the speech made at the other end of the 
avenue, and I regret to say by the President, 
in which he denounced to a party of the gentle- 
man's choosing this joint committee of recon- 
struction, raised by the action of both Houses 
of Congress, as a central dictator unconstitu- 
tional and unauthorized by law. Why, sir, if 
the gentleman was not speaking sportivel}'; if 
he was not speaking ironically, one would sup- 
pose he would make haste to withdraw himself 
from all connection with such a committee as 
that of which he thus speaks. Surely the gen- 
tleman does not mean by this denunciation of 
the committee to- boast, like certain men of 
eighteen centuries ago, that he is better than 
othermen, who lifted uptheirhandsandthanked 
God that they were not like other men. If 
that be the gentleman's opinion of himself, it 
is time he should exclaim, " My soul, be not 
thou united with their assembly or sit in the 
council of the ungodly!" 

We have the argument of the gentleman 
from Pennsylvania, [Mr. Randall,] that how- 
ever just the amendment may be we ought 
not to pass it in the absence of the Representa- 
tives of the eleven States lately in insurrec- 
tion against the country. Mr. Speaker, when 
the gentleman comes to reflect upon that re- 
mark of his he will see by using it he casts an 
imputation upon the very men who fi-amed the 
matchless Constitution of the country under 
which we are assembled here to-day. It was 
written in the Articles of Confederation that 
they "should be articles of perpetual Union" 
between the original thirteen States who were 
parties to it. It was written in the Constitu- 
tion that, if adopted by nine States, it should 
become the Constitution for those nine States, 
the covenant of the Articles of Confederation 
to the contrary notwithstanding. It thence 
resulted that the Constitution did become the 
supreme law of some teti States, in the absence 
of assent thereto on tjne part of three, and in 



direct violation of the express covenant of the 
Confederation itself. And when the question 
was asked of one of the fathers of the Con- 
stitution, how can you break up the Confed- 
eration without the consent of all the States, 
and against the protest of some of them ; how 
can you break the covenant ''of perpetual 
Union" under the Articles of Confederation? 
he gave for answer, that the right of the peo- 
ple to self-preservationjustiiies it ; it rests upon 
the transcendent right of nature, and nature's 
God. That right is still in the people and hfis 
justified their action through all this trial. It 
is the inherent right of the people. It cannot 
be taken from them. It has survived the storms 
and tempests of this great conflict of arms. 
Hence, if the gentleman's logic be true, that 
you cannot amend the Constitution without 
the assent of Representatives in Congress of 
the rebel States, you could not have passed 
any bill during all these four years of war, 
if it affected in any sense the interests of the 
eleven rebel States. 

In that objection the gentleman, like the gen- 
tleman who preceded him, is simply following 
the argument of the President, who has said 
something of that kind in his veto message of 
the Freedmen's Bureau bill. 

We have, then, sir, the calmer and more de- 
liberate utterance of the honorable gentleman 
from New York, [Mr. Hale.] He says that 
the Constitution does contemplate equality in 
the protection of the rights of life, liberty, and 
property in every State. He admits it does 
contemplate that the citizen of each State shall 
be entitled to all the privileges and immunities 
of citizens in the several States. It will be 
noticed, the gentleman takes care not to utter 
one single word in opposition to that part of 
the amendment which seeks the enforcement 
of the second section of the fourth article of 
the Constitution of the United States, but by 
' his silence he gives his assent to it. But the 
gentleman reiterates the old cry of State rights, 
and says, " You are impairing State rights. " 
I would like to know, and when the gentleman 
comes to make another argument on this sub- 
ject, I respectfully as^ him to inform us whence 
he derives the authority for supposing, if he 
does so suppose, that any State has the right to 
deny to a citizen of any other State any of the 
privileges or immunities of a citizen of the Uni- 
ted States. And if a State has riotthe right to 
do that, how can the right of a State be im- 
paired by giving to the people of the United 
States by constitutional amendment the power 
by congressional enactment to enforce this pro- 
vision of their Constitution? 

The gentleman did not utter a word against 
the equal right of all citizens of the United 
States in every State to all privileges and im- 
munities of citizens, and I know any such 
denial by any State would be condemned by 
every sense of his nature. If a State has not 
the right to deny equal protection to any human 
being under the Constitution of this country in 
the rights of life, liberty, and property, how 
can State rights be impaired by penal prohi- 
bitions of such denial as proposed ? 






3 



But, says the gentleman, if you adopt this 
amendment you give to Congress the power to 
enforce all the rights of married women in the 
several States. 1 beg the gentleman's pardon. 
He need not be alarmed at the condition of 
married women. Those rights which are uni- 
versal and independent of all local State legis- 
lation belong, by the gift of God, to every wo- 
man, whether married or single. The rights of 
life and liberty are theirs whatever States may 
enact. But the gentleman's concern is as to 
the right of property in married women. 

Although this word property has been in your 
bill of rights fi-om the year 1789 until this hour, 
who ever heard it intimated that anybody could 
have property protected in any State until he 
owned or acquired property there according to 
its local law or according to the law of some 
other State which he may have carried thither? 

As to real estate, every one knows that its 
acquisition and transmision under every inter- 
pretation ever given to the word property, as 
used in the Constitution of the country, are de- 
pendent exclusively upon the local law of the 
States, save under a direct grant of the United 
States. But suppose any person has acquired 
property not contrary to the laws of the State, 
but in accordance with its law, is he not to be 
equally protected in the enjoyment of it, or 
is he to be denied all protection? 

The gentleman seemed to think that all per- 
sons could have remedies for all violations of 
their rights of " life, liberty, and property" in 
the Federal courts. 

I ventured to ask him yesterday when any 
action of that sort was ever maintained in any 
of the Federal courts of the United States to 
redress the great wrong which has been prac- 
ticed, and which is being practiced now in more 
States than one of the Union under the author- 
ity of State laws, denying to citizens therein 
equal protection or any protection in the rights 
of life, liberty, and property. 

*i\Ir. Speaker, on this subject I refer the 
House and the country to a decision of the 
Supreme Court, to be found in 7 Peters, 247, in 
•the case of Barron vs. The Mayor and City 
Council of Baltimore, involving the question 
whether the provisions of the fifth article of 
, the amendments to the Constitution are bind- 
'ing upon the State of Maryland and to be 
enforced in the Federal courts. The Chief 
Justice says : 

"The people of the United States framed such a 
Government for the United States as they supposed 
best adapted to their situation and best calcuhited to 
promote their interests. The powers they conferred 
on this Government were to be exereisedby itself; 
and the limitations of power, if expressed in general 
terms, are naturally, and we think necessarily, appli- 
cable to the Government created by the instrument. 
They are limitations of power granted in the instru- 
ment itself, not of distinct governments. 

"If these propositions be correct, thefifth amend- 
ment must be understood as restraining the power of 
the General Government, not as applicable to the 
States." 

I read one further decision, the case'of the 
Lessee of Livingston vs. Moore and others, 7 
Peters, page 551. The court say : 

"As to the amendments of the Constitution of the 
United States, they must be put out of the case 



since it is now settled that those amendments do not 
extend to the States; and this observe poii disposes 
of the next exception, which relics on the seventh 
article of those amcudmcuts." 

What have gentlemen to say to that ? Sir, I 
stand relieved to-day from entering into any 
extended argument in answer to these decis- 
ions of your courts, that although as ruled the 
existing amendments arenotapplicable to and 
do not bind the States, they are nevertheless 
to be enforced and observed in States by the 
grand utterance of that immortal man, who, 
while he lived, stood alone in intellectual power 
among the living men of his country, and now 
that he is dead, sleeps alone in liis honored 
tomb by the sounding sea. I refer to that argu- 
ment never yet answered, and never to be an- 
swered while human language shall be spoken by 
living man, wherein Mr. Webster says: 

"There is no language in the Constitution appli- 
cable to a confederation of States. If the States bo 
parties, as States, what are their rights, and what their 
respectivecovenantsandstiuplations? Andwhereare 
their rights, covenants, and stipulations expressed? 
The States engage for nothing, thoy promise nothing. 
In the Articles of Confederation, they did make prom- 
ises, and did enter into engagements, and did plight 
the faith of each State for their fulfillment, but in the 
Constitutionthereisnothingof that kind. The reason 
is, that in the Constitution it is the people who speak, 
andnottheStates." * * * * "Theyaddress 
themselves to the States and to the Legislatures of 
States in the langu.'ige of injunction and prohibition. 
The Constitution utters its behests in the name and 
by authority of the r)(^nriii> o..,i;» ' cictfrom 

States any plight ■ n it. * 

* * * "It. . lilt',- and 

individual conscien 0. ir nu . m 

sit in the Legislature of a S'.^i : .,t 

have taken his solemn oath to - , ; u - 

tion of the United State?. Frum U;t. yLiioition of 
this oath no State power can discharge him."— 3 We6- 
ster's Works, p. 471. 

Why, I ask, should not the "injunctions and 
prohibitions," addressed by the people in the 
Constitution to the States and the Legislatures 
of States, be enforced by the people through the 
proposed amendment? By the decisions read 
the people are without remedy. It is admit- 
ted in the argument of Mr. Webster, just cited, 
that the State Legislatures may by direct vio- 
lations of their duty and oaths avoid the re- 
quirements of the Constitution, and thereby do 
an act which would break up any government. 

Those oaths have been disregarded ; those 
requirements of our Constitution have been 
broken ; they are disregarded to-day in Oregon ; 
they are disregarded to-day, and have been dis- 
regarded for the last five years in every one of 
the eleven States recently in insurrection. 

The question is, simply, whether you will give 
by this amendment to the people of the United 
States the power, by legislative enactment, to 
punish officials of States for violation of the 
oaths enjoined upon them by their Constitution? 
That is the question, and the whole question. 
The adoption of the proposed amendment will 
take from the States no rights that belong to 
the States. They elect their Legislatures : they 
enact their laws for the punishment of crimes 
against life, liberty, or property; but in the 
event of the adoption of this amendment, if 
they conspire together to enact laws refusing 
equal protection to life, liberty, or property. 



the Congress is thereby vested with power to 
hold themj^ to answer before the bar of the 
national coarts for the violation of their oaths 
and of the rights of their fellow-men. Why 
sJiould it not be so? That is the question. 
Why should it not be so? Is the bill of rights 
to stand in our Constitution hereafter, as in the 
past live years within eleven States, a mere dead 
letter ? 

Mr. Speaker, it appears to me that this very 
provision of the bill of rights brought in ques- 
tion this day, upon this trial before the House, 
more than any other provision of the Constitu- 
tion, makes that unityofgovernmentwhich con- 
stitutes us one people, by which and through 
which American nationality came to be, and 
only by the enforcement of which can American 
i.ationality continue to l>e. 

The imperishable v/ords of Washington ought 
to be in the minds of all of us touching this 
great question whether the unity of the Gov- 
ernment shall be enforced hereafter by just pe- 
nal enactments when the Legislatures of States 
refuse to do their duty or keep inviolate their 
oath. Washington, speaking to you and to me 
and to the millions who are to come after us, 
says : 

" The unity of Government which constitutes you 
one people is a main pillar in the edifice of your real 
independence, the support of your tranquillity at 
home, your peace abroad, of your safety, of your pros- 
perity, of that very liberty which you so highly prize." 

Is it not essential to the unity of the people 
that the citizens of each State shall be entitled 
to all the privileges and immunities of citizens 
in the several States ? Is it not essential to the 
unity of the Government and the unity of the 
people that all persons, whether citizens or 
strangers, within this land, shall have equal 
protection in every State in this Union in the 
rights of life and liberty and property? 

Why, sir, what an anomaly is presented to- 
day to the world ! We have the power to vindi- 
cate the personal liberty and all the personal 
rights of the citizen on the remotest sea, under 
the frowning batteries of the remotest tyranny 
on this earth, while we have not the power in 
time of peace to enforce the citizens' rights to 
life, liberty, and property within the limits of 
South Carolina after her State government shall 
be recognized and her constitutional relations 
restored. 

I commend especially to the honorable gen- 
tleman from New York [Mr. Hale] the paper 
issued by his distinguished fellow-citizen, when 
he was acting as Secretary of State for the 
United States, the lamented Marcy, touching 
*' the protection of the rights of Martin Koszta, 
a citizen of the United States, whose rights 
were invaded abroad, within the jurisdiction of 
the empire of Austria. Commodore Ingraham 
gave notice that he would fire upon their town 
and their shipjiing unless they respected the 
rights of a declared citizen of the American 
Republic. You had the power to enforce your 
demand. But you are power-less in time of 
peace, in the presence of the laws of South 
Carolina, Alabama, and Mississippi, as States 
admitted and restored to the Union, to enforce 



the rights of citizens of the United States 

within their limits. 

Do gentlemen entertain for a moment the 
thought that the enforcement of these provisions 
of the Constitution was^not to be considered 
essential? Consider the triple safeguards in- 
terposed in the Constitution itself against their 
denial. It is provided in the Constitution, in 
the first place, that "this Constitution," the 
whole of it, not a part of it, '"shall be the su- 
preme law of the land." Supreme from the 
Penobscot in the farthest east, to the remotest 
west where rolls the Oregon ; supreme over 
every hamlet, every State, and every Territory 
of the Union. 

As the whole Constitution was to be the su- 
preme law in every State, it therefore results 
that the citizens of each State, being citizens 
of the United States, should be entitled to all 
the privileges and immunities of citizens of the 
United States in every State, and all persons, , 
now that slavery has forever perished, should 
be entitled to equal protection in the rights of 
life, liberty, and property. 

As a further security for the enforcement of 
the Constitution, and especially ofthis sacred bill 
of rights, to all the citizens and all the people 
of the United States, it is further provided that 
the members of the several State Legislatures 
and all executive and judicial oflicers, both of 
the United States and of the several States, 
shall be bound by oath or affirmation to support 
this Constitution. The oath, the most solemn 
compact which man can make with his Maker, 
was to bind the State Legislatures, executive 
officers, and judges to sacredly respect the Con- 
stitution and all the rights secured by it. And 
yet there is still another provision lest a State 
Legislature, with the approval of a State Ex- 
ecutive, should, in disregard of their oath, invade 
the rights of any citizen or person by unjust legis- 
lation, violative alike of the Constitution and 
the rights secured by it, which is very significant 
and not to be ovei'looked, which is, • 

"And the judges of every State shall be bound by 
the Constitution of the United States, anything in the 
constitution and laws of any State to the contrary not- 
withstanding." 

With these provisions in the Constitution 
for the enforcement in every State of its re- 
quirements, is it surprising that the framers of 
the Constitution omitted to insert an express 
grant of power in Congress to enforce by penal 
enactment these great canons of the supreme 
law, securing to all the citizens in every State 
all the privileges and immunities of citizens, 
and to all the people all the sacred rights of 
person — those rights dear to freemen and for- 
midable only to tyrants — and of which the 
fathers of the Republic spoke, after God had 
given them the victory, in that memorable ad- 
dress in which they declared, "Let it be remem- 
bered that the rights for which America has 
contended Avere the rights of human nature?" 
Is it surprising that essential as they held the 
full security to all citizens of all* the privileges 
and immunities of citizens, and to all the peo- 
ple the sacred rights of person, that having 
proclaimed them they left their lawful enforce- 



ment to eacli of the States, under the solemn 
obligation resting upon every State officer to 
regard, respect, and obey the constitutional 
injunction ? 

What more could have been added tq that 
instrument to secure the enforcement of these 
provisions of the bill of rights in every State, 
othe^' than the additional grant of power which 
we ask this day? Nothing at all. And I am 
perfectly confident that that grant of power 
would have been there but for the fact that its 
insertion in the Constitution would have been 
utterly incompatible with the existence of sla- 
vei-y in any State ; for although slaves might 
not have been admitted to be citizens they must 
have been admitted to be persons. That is the 
only reason why it was not there. There was 
a fetter upon the conscience of tlie nation. 
Thank God, that fetter has been broken ; it has 
turned to dust before the breath of the people, 
speaking as the voice of God and solemnly or- 
daining that slavery is forever prohibited every- 
where within the Republic except as punish- 
ment for crime on due conviction. Even now 
for crimes men may be made slaves in States, 
notwithstanding the new amendment. 

As slaves were not protected by the Consti- 
tution, there might be some color of excuse for 
the slave States in their disregard for the re- 
quirement of the bill of rights as to slaves and 
refusing them protection in life or property ; 
though, in my judgment, there could he no pos- 
sible apology for reducing men made like them- 
selves, in the image of God, to a level with the 
brutes of the field, and condemning them to 
toil without reward, to live without knowledge, 
and die without hope. 

But, sir, there never was even colorable ex- 
cuse, much less apology, for any man North or 
South claiming that any State Legislature or 
State court, or State Executive, has any right 
to deny protection to any free citizen of the 
United States within their limits in the rights 
of life, liberty, and property. Gentlemen who 
oppose this amendment oppose the grant of 
power to enforce the bill of rights. Gentlemen 
who oppose this amendment simply declare to 
these rebel States, go on with your confiscation 
statutes, your statutes of banishment, your stat- 
utes of unjust imprisonment, your statutes of 
murder and death against men because of their 
loyalty to the Constitution and Government of 
the United States. 

That is the issue that is before the American 
people ; and God helping me, without respect 
for persons in high places who show a disposi- 
tion to betray this great cause, I will not betray 
it, so long as it is given me to know the right. 

Pending this great issue, what utterances do 
we hear? You have, in the first place, the 
utterances of him whom we elected Vice Pres- 
ident of the United States, and who is now, by 
the work of an assassin. President of the United 
States, and of whom I have been accustomed 
to speak with great respect. The House and 
the country will remember that at the opening 
of this session I'declared in my place here that 
if an issue v/as to be made between the Presi- 
dent and the Representatives of the people it 



must be made by him and not by us. It has 
been made by him. . 

I trust in God that for his own' !pke, for the 

sake of his country, and of the friends who gave 
him his ingii position, lie will retrace his step.-^ ; 
but whelher he does or docs not, 1 trust that 
the American people will not strike the word 
"forward"' from their vocabulary, but will 
go right on to the consummation of the great 
work which Providence has committed to their 
hands; that is, the enforcement of tiieir Con- 
stitution in every State, in every 'i'errilory, 
and upon every sea, wherever our Hag llouls, 
whoever may oppose at home or abroad. 

What, in brief, are those utterances? Why, 
says the President in his speech — not in liis 
message to Congress, but in his speech, which 
is received with so many laudatitms in certain 
quarters, and over which, it seems, the gen- 
tleman from New Jersey [Mr. Rookks] and his 
party held a «ort of general jubilation — " Let 
all those lately in insurrection against the Gov- 
ernment and laws of the United States, who 
will now declare their allegiance and take the 
oath, be admitted into this Union and by their 
representatives into the councils of this nation." 

Take the oath! What oath? Not the oath 
of the Constitution which they have l)roken, 
but the oath prescribed by the President him- 
self, and which, except in the tribunals of mil- 
itary justice, has no more f'^^ce or viTe'-l lL:iii 
the paper upon '.vhich it ii printed. Ay, take 
the oath! '"Swear -him, and let him go." It 
would be about as reasonable, under e\' ' 
circumstances, t:) c;w;'ar that venniaous 
which was the sym'jol of South Caroliuu 
son — the rattlesr:.'.k ? — f.rd let it go. 

What have we uiore uouching this great issue? 
The venerable Secretary of State, in the city of 
New York, makes a speech, and in the course 
of that speech gives to the country another of 
his prophecies. I have been accustomed to sus- 
tain, in my humble way, that gentleman in the 
past, and I am accustomed now to speak of 
him most gratefully for the services he has ren- 
dered to the country, by his surpassing skill as a 
diplomatist, and by his undoubted fidelity to the 
interests of his country in his great office as 
minister of foreign affairs. What I say of him 
now I speak with regret and sorrow, not in 
anger. What I speak of him I say from a sense 
of duty to a cause which I think imperiled by 
his speech. It is fit the people should not be 
deceived. "The man who speaks the truth is 
greater than a king. ' ' 

Need the people of this country be reminded 
of what they do know, that he is no prophet, 
that his other memorable prophecies have 
failed? I remember, sir, that when the foun- 
dations of the Republic were rocking beneath 
the mustering tread of the armed hosts who 
were about to strike at the nation's life, that 
gentleman in the same city of New York ut- 
tered his oracular declai-ation that the rising 
storm would last only sixty days. 

Mr. Speaker, there is one further remark I 
desire to make here, and I trust it will not be 
deemed out of order. It has been announced 
by persons in high places unofficially that no 



6 



amendment should be made to the Constitution • 
that there ip no danger to be apprehended from 
the milhonlmeu hxtely in arms against the 
Kepmjlic; t;'iat all the lately rebellious States 
sfiould be admitted at once to representation 
without any condition ; that the loyal people of 
the United States who have saved their Gov- 
ernment from overthrow by the wager of battle 
have no right to require any security for the 
tuture ; that nothing remains ibr them to do but 
to kill the fatted calf and to welcome back the 
returning prodigal traitors by the million. 

in that connection, in order to show the dan- 
ger to the peace of the country, I beg leave to 
say further, that at no distant day 1 have no 
doubt testimony will be adduced to satisfy every 
houest man in this country, who wishes well to 
the (.Tovernment and the Constitution that there 
is now a conspiracy extending through every 
btate lately in insurrection, and perchance be- 
yond their limits, among these returning prod- 
igal rebels for whom we are invited to kill the 
latted calf, to take possession of the legislative 
power of this country, and accomplish by cor- 
rupt legislation what they failed to accomplish 
by arms. In support of this statement I will 
read the following. It is taken from the Nor- 
lolk (Virginia) Post: 

iZ o? T.1L''.>< 1c!?7 "l"^ ^"u^ SorrTH.-Since the morn- 
ing ot J -ily 2 J 1861, when the news of the great souf h- 

nn"^?vf*'''"Vf^"'^^1. by Beauregard over McDowell 
and the awful rout ol the Federal Army on the plains 
wL^- T.!''' was borne through <he South on the 
wings ot the wind as it were, carrying jov and jubila- 
tion into every loyal southern hoii^ehold and glad- 
..i-uin? every true southern heart, I' ere has been no 
news received with so much rejoicing by the people 
ot the feouth as that contained in the dispatch inform- 
ing them the President had vetoed the Freedmen's 
Isureau bill. 

"This i.3 the greatest victory they have achieved 
io" 5 tlie war— greater than any of the feats of 
iu.ns ot btoncwall Jackson or of Robert E. Lee ■ and 
It has given them more pleasure than had General 
Lree been elected Governor of Virginia. They have 
tound an ally in the President worth more to them 
than the alliance of France or England, and they 
now begin to see, even as they saw foreshadowed at 
Manassas, the final triumph of the great southern 
cause. 

Ithas been already intimated that the fatted 
calf is to be killed at the North to welcome back 
the returning prodigals— traitors whose hands 
are red with the blood of murder and assassina- 
tion, who for four years struck at the life of 
your country and at the life of its defenders. 
Whether the publisher of that paper at Nor- 
folk who uttered the words which have been 
read was speaking ironically as to this con- 
spiracy at the South, or whether as the accred- 
ited organ of the conspirators, it makes not a 
particle of difference. It is, in my judgment, 
according to the declared purpose of those men. 
They are ready to kill the fatted calf if Andrew 
Johnson will only forget his former utterances, 
wherein he said that treason is a crime that 
must be made odious and traitors must be pun- 
ished ; that traitors are no longer citizens and 
should not be permitted to participate in the 
reconstruction and reorganization of the States ; 
and especially if he would lend himself to that 
black and villainous suggestion which linds a 
place in the columns of the Chicago Times— a 
paper which in its dav was, I believe, sup- 



pressed for its treasonable utterances by order 
of CTeneralBurnside— that the President would 
do well to drive the Representatives of the peo- 
ple by an armed jMSse from the Hall of Repre- 
sentatives. '■ 

Mr LATHAM. I desire to ask the gentle- 
man from Ohio, [Mr. Bingham,] whether he 
proposes to make the adoption of this consti- 
tutional amendment by the constitutional ma- 
jority ot the States a condition precedent to ' 
admitting the Representatives of any of the 
eleven States. 

Mr. BINGHAM. I beg leave to state that 
every endeavor has been made by that com- 
mittee, without regard to this amendment, to 
present the case of Tennessee;' so that by the 
sovereign act of the American people, through 
the joint act of Congress, the constitutional 
relations of the State of Tennessee as a State 
ot this Union might be restored. I am not 
at liberty to state, even if I knew, what the 
committee intend to do in regard to that 
Mate. 1 do know that the matter is still be- 
fore us; and that we have given it atten- 
tion. 

_ But that does not excuse us from the con- 
sideration of this question. The adoption of 
tins amendment is essential to the protection 
of the Union men of Tennessee; those grand, 
t™«^™en, who "unshaken, unseduced. unter- 
rifaed, their loyalty they kept, amid the howl 
of treason, whose infernal enginery shook the 
continent. Every honorable man here from 
iennessee tr.-day- and I believe they are all 
honorable men— will bear me witness when I 
say that the Union men of Tennessee to-day 
have no security except from the armed pres- 
ence of the United States Government there 
And when the State shall be restored, and the 
troops of the Government withdrawn, they will 
have no security in the future except by force 
of national laws giving them protection against 

w*^!!"^ '® '^^*^" "^ ^^^^ against them. 

Will any man tell me how forty thousand 
loyal and true men in Tennessee can hold the 
power in that State against ninetv thousand 
who, m social position, are equal to them, and 
who m wealth are greatly superior to them? 
And I beg leave to say further, that it will 
prove to be the fact that the rebels will be found 
in a majority of three to one or four to one in 
every one of the States that have been engaged 
in tlie rebellion, except in Tennessee. 

How will you prevent that overpowering- 
majority from taking possession of those recon" 
structed governments ? Do you call it a " re- 
publican government"' within the meaning of 
the Constitution to maintain a minority in power 
indefinitely in a State by Federal bayonets ? I 
do not, nor does any intelligent man. What 
then ? Why, according to the programme be- 
fore us, those rebels are all to be sworn in- 
sworn in upon an oath that makes no condi- 
tions, as announced in the President's speech, 
save that they will hereafter support the Con- 
stitution. They are all to be sworn in and to 
be allowed to assume the control of their re- 
spective States, Where is the power in Con- 
gress, unless this or. some similar amendment 



be adopted, to prevent the reenactment of 
those atrocious statutes of banishment and con- 
fiscation and imprisonment and murder under 
which people have suffered in those States du- 
ring the hxst four .years ? Let some man answer. 
Why, sir, the gentleman from New York [Mr. 
Hale] himself yesterday gave up the argument 
on this point. He said that the citizens must 
rely upon the State for their protection. I ad- 
mit that such is the rule under the Constitution 
as it now stands. 

I beg leave to read, in confirmation of the 
truth of what I say, an utterance made in the 
hearing of the whole people of this country in 
1788, when the Constitution was on trial for its 
deliverance. I read from No. 45 of the Fed- 
eralist, a paper written by James Madison : 

"The powers reserved to the Federal States will 
extend to all the objects which, in the ordinary course 
of aflfairs, concern the lives, liberties, and properties 
of the people, and the internal order, improvement, 
and prosperity of the State." 

I submit that this is the text of the Consti- 
tution, except as to the new amendment pro- 
hibiting slavery, and providing for legislation 
to prevent it except as punishment for crime. 
It stands as the ruling of the Supreme Court of 
the United States in the great case of McCul- 
lough vs. The State of Maryland, in 4 Wheaton. 
It stands as the ruling of the same tribunal in 
the case of Ogdeu vs. Gibbons, in 9 Peters. It 
stands, in short, as the uniform ruling of the 
Supreme Court of the United States, concurring 
with the continued action of the other depart- 
ments of the Government from the year 1789 
till this hour, there being no law anywhere upon 
our statute-books to punish penally any State 
officer for denying in any State to any citizen 
of the United States protection in the rights of 
life, liberty, and property. It stands as the 
very text of the Constitution itself, which de- 
clares that — ■ 

" The powers not delegated to the United States by 
the Constitution, nor prohibited by it to the States 
are reserved to the States respectively or to the 
people." 

The word "powers" controls the whole 
question. The Government of the United 
States has no legislative powers, save the ex- 
press grants and the general grant to pass 
all laws which shall be necessary and proper 
to carry into execution all other powers vested 
by the Constitution in the Government of the 
United States, or in any department or any 
officer thereof, and the implied powers neces- 
sary to carry the express powers into effect. 
A grant of power, according to all construction, 
is a very different thing from a bill of rights. 
In support of what I have said on this point I 
ask attention to the following citations : 

McCuUough vs. Maryland, 4 Wheaton, 405, 

Marshall, C. J., says: 

"The Constitution of the United States is one of 
limited and expressly delegated powers, which can 
only be exercised as granted, orin cases enumerated." 

Speaking of the authority given to Congress 

by the last clause of the first article, eighth 

section, of the Constitution, Judge Story in his 

Commentaries, section 1238, says : 

" The plain import of this clause is, that Congress 



shall have all the incidental and instrumental powers 
necessary and pr(H)cr to carry into ex -tion iiU tho 
express powers. It neither enlarges a power spe- 
cifically granted, nor is it a Krant of a, / now nowcr 
to Congress." | 

In Martin I's. Hunter's Lessee, V Wheaton, 
326, it is said : 

"The Government of the United State v can claim 
no power? which are not granted to it by the Consti- 
tution, and the powers actually granted nro such aa 
are expressly given or given by necessary implica- 
tion. 

In Gibbons vs. Ogden, 9 Wheaton. 187, Chief 
Justice Marshall, speaking of the Constitution, 

says : 

" This instrumeiit containsan enumeration of pow- 
ers expressly granted by the people to their aovcrn- 
•ment." 

In Kent's Commentaries, volume one, pages 
388-390, there is this language: 

"The correct principle is that whenever the terms 
in which the power was granted to Consrcss, or the 
nature of the power required that it should be exclu- 
sively exercised by Congress, the subject was as com- 
pletely taken away from the State Legislatures as if 
they had been expressly forbidden to act upon it." 

You have the express power to define the 
punishment of treason ; the express power to 
punish the counterfeiting of coin or securities 
of the United States ; the express power to 
define and punish piracies and felonies com- 
mitted upon the high seas, and offenses against 
the law of nations ; exclusive legislativc'power 
within this District : -_ 

all Territories: hi it , - 

to define and puni;- 
State by its ofii^irJ ...i.rs iu-f-Kyl.. 
rights of citizens ■ ■ ■ -orsona as ' 
the Constitution? \\n from v.'ha' c\'j...v'5>i . 
delegated power ... the Constituiiou oau uuy 
such power be implied? Passing- the'- aiVti 
slavery amendment, is there any Ofie prepJuC,.^ 
|to say that the bill of rights confers express 
legislative power on Congress to punish State 
officers for a willful and corrupt disregard of 
their oaths and oppressive and flagrantly unjust 
violations of the declared rights of every citi- 
zen and every free man in every free State? 
The words of Madison cited are very signifi- 
cant : ' ' The powers reserved to the several States 
will extend to all the objects which concern 
the lives, liberties, and properties of the peo- 
ple." The fact is that Congress has never by 
penal enactment in all the past attempted to 
enforce these rights of the people in any State 
of the Union. 

Sir, the great question is presented for the 
consideration of the House and the country, 
shall these States, all of them, be restored in 
their present condition, and with no new secu- 
rities taken by the people for the future? Shall 
South Carolina be thus restored, for example, 
nine tenths of her people who vote having been 
rebels in arms or directly engaged in rebellioA 
against the country, and her Governor having 
been an active member of the rebel senate at 
Richmond during the four years' trial, now act- 
ing Governor over the loyal men of the State? 
Is that State to be restored without the power 
in Congress to protect the few loyal white men 
there against State statutes of confiscation and 
statutesoibanishment? And for the emancipated 



8 



slaves of South Carolina are you to have no 
power sar ,-,'"j prohibit their reduction again to 
slave'"- I -.cPpt as punishment for crimes against 
-tli'v,- laws (, 'jyouth Carolina? Let some geutle- 
riian who ■'•^iposes this amendment stand up in 
his place ' id answer to the country how, after 
these Sta s are restored to political jDower, the 
Governn.^nt of the United States can by law 
interveu" - except as to slavery, under the Consti- 
tution 0+' the United States, as it now stands, 
to protect the loyal white minority or the loyal 
but disf anchised colored majority in that State 
agains"i3anishment? 

I call the attention of the House also to the 
condit^'^n of Mississippi. How is it that a man 
who fo ght in the armies against the country 
throughout all these years of conflict — a man 
who, 1 believe, had a rebel commission as briga- 
dier general— is elected Governor of that State, 
and is now Governor over that people? The 
people who would elect Humphreys Governor 
are doubtless the people who followed Hum- 
phreys in the war for treason, in the war for 
the dismemberment of the Union. Now, we 
are told by these gentlemen to make haste to 
restore all of those States and permit them to 
reenact by law the crimes which they have 
inflicted l)y force for the last four years. 

I think there are exceptions among those 
States. I think there is a greater proportion 
of loyal men in some than in others. I think it 
may become the accepted policy of this House, 
and I trugt it will, to admit such States as are 
CO ^£^ advance/l in reconstruction and reorgani-, 
zation and an honest return to allegiance under 
the Government as will enable them to consoli- 
date their strength and maintain a republican 
constitutional State government. 

It seems to me equally clear if you intend to 
have these thirty-six States one under our Consti- 
tution, if you intend that every citizen of every 
State shall in the hereafter have the immunities 
and privileges of citizens in the several States, 
you must amend the Constitution. It cannot be 
otherwise. Restore those States with a majority 
of rebels to political power, and they will cast 
their ballots to exclude from the protection of 
the laws every man who bore arms in defense of 
the Government. The loyal minority of white 
citizens and the disfranchised colored citizens 
will be utterly powerless. There is no efficient 
remedy for it without an amendment to your 
Constitution. A civil action is no remedy for a 
great public wrong and crime. 

Nobody dreams, if we admit these States 
unqualifiedly, but some of their officials would 
violate their oaths as they have heretofore done 
and clothe themselves with perjury as with a 
garment in order to sweep away the rights of 
loyal men, and be avenged upon them for their 
fidelity to the sacred cause of the Constitution, 
and the laws. 

Sir, we are no longer permitted to doubt that 
whole communities are capable of so great in- 
famy and perfidy. They did this in eleven of 
these States five years ago, and if they did it 
once may they not do it again ? 

We are told they will be in terror of the 
prowess of j'our arms. Ay, they have occa- 



sion to be in terror of the prowess of your arms, 
and they will doubtless avoid any such conflict 
again. But the point I desire to make clear 
is, that unless you put them in terror of the 
power of your laws, made efficient by the 
solemn act of the whole people to punish the 
violators of oaths, they may defy your restricted 
legislative power when reconstructed : they may 
dismember your Union and rend it into frag- 
ments and drive into banishment every loyal man 
in all those rebel States, and hold as their heri- 
tage a territory half as large as continental 
Europe without firing a gun or daring again to 
commit the overt act of treason. With these 
convictions of the power of the rebel popula- 
tion when their States are fully restored, I urge 
this amendment upon the Consideration of the 
House and upon the consideration of the coun- 
try. I pray gentlemen to consider wiell the vote 
they may give now or at a future day when we 
come to act finally upon this measure. 

The present rejection of this measure and the 
admission to full representation of all the rebel 
States now, may bring your institutions into 
peril. Whatever may be the result I shall not 
despair of the Republic. My trust will be in 
the people to whose decision I ask you to com- 
mit this amendment — that great people who 
saved their imperiled Constitution amid the 
fire and tempest of battle. They will, I trust, 
though it may be not without additional sacri- 
fice, correct all errors, perfect their Constitu- 
tion, enforce by just and eqi^al laws all its pro- 
visions, and so fortify and strengthen the Re- 
public that it will stand unmoved until empires 
and nations perish. 

Mr. Speaker, I speak in behalf of this amend- 
ment in no party spirit, in no spirit of resent- 
ment toward any State or the people of any 
State, in no spirit of innovation, but for the sake 
of a violated Constitution and a wronged and 
wounded country whose heart is now smitten 
with a strange, great sorrow. I urge the amend- 
ment for the enforcement of these essential i^ro- 
visions of your Constitution, divine in their jus- 
tice, sublime in their humanity, which declare 
that all men are equal in the rights of life and 
liberty before the majesty of American law. 

Representatives, to you I appeal, that here- 
after, by your act and the approval of the loyal 
people of this country, every man in every State 
of the Union, in accordance with the written 
words of your Constitution, may, by the national 
law, be secured in the equal protection of his per- 
sonal rights. Your Constitution provides that 
no man, no matter what his color, no mat- 
ter beneath what sky he may have been born, 
no matter in what disastrous conflict or by what 
tyrannical hand his liberty may have been clo- 
ven down, no matter how poor, no matter how 
friendless, no matter how ignorant, shall be 
deprived of life or liberty or property without 
due process of law — law in its highest sense, 
thatlawwhichistheperfection of human reason, 
and which is impartial, equal, exact justice ; 
that justice which requires that every man shall 
have his right ; that justice which is the highest 
duty of nations as it is the imperishable attri- 
bute of the God of nations. 



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